Carter v. Sommermeyer

Dixon, C. J. The intention of the party often becomes material in testing the question of residence, and is sometimes the decisive fact or circumstance. But a person having already a fixed residence or place of abode cannot change it by intention merely. Mere mental resolution or determination, or the party’s own affirmation that he has changed his residence, will not have the effect to change it, if there be no actual removal, or if the party continue the use and occupation of the same house and home with all the indicia and circumstances of continued residence therein. Such appears to have been the facts and circumstances with respect to the alleged change of residence of the defendant Henry Sommermeyer from the county of Dunn to the county of Eau Claire. At all events, the preponderance of testimony as shown by the affidavits, which are decidedly conflicting, tends strongly to this conclusion; and we are inclined to hold, as the court below did, that the fact of change of residence was not made out by the defendants. There is quite as good, and we think even better, ground for saying that the defendant Henry was a resident of Dunn county at the time of service, than that he was a resident of Eau Claire county. It being conceded that the application for a change of venue ought not to have been granted unless both defendants were residents of the county of Eau Claire, dr because one only of them was, it follows that the order appealed from should be affirmed. By the Court. — Order affirmed.